State v. Myers

• Decision Date: 07 May 1968
• Docket Number: No. 52980,52980
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellee, v. Vicki Ann MYERS, Appellant.

Page 717

158 N.W.2d 717

STATE of Iowa, Appellee, v. Vicki Ann MYERS, Appellant.

No. 52980.

Supreme Court of Iowa.

May 7, 1968.

I. Joel Pasternak, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Ray A. Fenton, County Atty., of Des Moines, for appellee.

LARSON, Justice.

The defendant, Vicki Ann Myers, was charged with the crime of robbery with aggravation contrary to sections 711.1 and 711.2 of the 1966 Code of Iowa, by aiding and abetting Lloyd Richards in the robbery of James O. Martindale, attendant at the Erickson Holiday Service Station in Des Moines, Polk County, Iowa, the said Richards being armed with a dangerous weapon, with intent, if resisted, to kill or maim Martindale.

Pursuant to a plea of not guilty, trial was had before a jury, which returned a verdict of guilty, and when her motion for a new trial was overruled, judgment was entered committing her to the Women's Reformatory for a period of twenty-five years. She appeals. We affirm.

Appellant asserts the sole question raised on this appeal is the sufficiency of the evidence to warrant submission of the case to the jury or to support a guilty conviction. She lists as error the trial court's refusal to grant her motion for a directed verdict and her motion for a new trial, and lists seven brief points or propositions upon which she relies for reversal. Generally, we agree with these propositions, but disagree with her application of them to the facts disclosed by the evidence herein.

I. In considering the sufficiency of the evidence, we accept the version most favorable to the State. State v. Allnutt, Iowa, 156 N.W.2d 266, 267, and citations; State v. Allnutt, Iowa, 158 N.W.2d 715, decided May 7, 1968. We then turn to the evidence of the State as disclosed by the record.

James O. Martindale was on duty as a service station attendant at Second and Washington Avenues in Des Moines at about 4:45 A.M. on October 1, 1967, when one Lloyd Richards came into the station and asked to use the telephone. When the cash register was opened, Martindale said, Richards pulled out a hammer, threatened him with it, and robbed him of $113 or $114 in currency, but took no change. Richards then ran eastward down Washington Avenue out of sight, and Martindale called the police. This service station is about four blocks north of University Avenue, and at that time Martindale observed no vehicles in the area.

Officer Bruce A. Klingaman, of the Des Moines Police Department, testified he was on patrol near Second Avenue and Keo when he received a radio report of the robbery. He drove north on Second Avenue and, as he crested the hill beyond the Des Moines Freeway, he observed a white over black station wagon coming off Ohio Street southbound with its lights out. It made a left turn east onto University and turned on its lights. As he pursued this vehicle, Officer Klingaman advised the dispatcher he would make an attempt to stop it. Without losing sight of it, he saw it turn south on Pennsylvania Avenue, and he then turned on his red stop light. He could see that the driver was a female and the passenger in the seat beside her was a male. He saw the latter duck down in a forward motion before the car was brought to a full stop. The officer said he approached the vehicle on the driver's side, but before he reached the door the defendant driver got out of the car and started to walk toward him. In response to his request for her driver's license, she asked him, 'What are you stopping me for?' In response to his question of where she came from, she told him she had just come from the City Drug Store and, prior to that, had been to a party at 10th and Center Streets.

The officer then directed his attention to the passenger. As he approached that door he pulled out his gun and demanded that the man get out. As he was getting out, the officer noticed a piece of brown cloth sticking out under the car seat. The passenger was then searched and placed under arrest. At that time other officers arrived to assist him, and the passenger, identified as Lloyd Richards, was advised of his constitutional rights and placed in a police car.

The officers then turned their attention to Miss Myers, the operator of the station wagon, and after she was advised of her rights she was asked if she would allow them to 'look through her vehicle.' She declined and was told a search warrant would be obtained, and she was placed in another police car. Officer Klingaman and Sergeant Harlan then looked through the windshield of the station wagon Miss Myers had been driving and could see a shirt and a handle on the car floor sticking out from under the front seat. Miss Myers was again asked if they could look 'through her car' and she again refused.

The vehicle was then impounded and taken to the police garage. After obtaining a search warrant and searching the vehicle, Officer Klingaman testified he found imitation suede stripes on the front, a claw hammer with a brown handle and a black metal head, both under the front seat on the passenger's side. Under the floor mat on the passenger's side he also found $113.00 in bills. These items were properly preserved and marked for evidence.

The radio description of the robber received by the officer stated he was a C.M.A. (apparently a colored male adult) in his late twenties wearing a brown sport shirt. It also appeared the officer was present when the station attendant later identified the hammer and the brown shirt or jacket as those possessed by the robber at the time of the robbery.

Two other police officers, who responded to Officer Klingaman's request for help testified for the State. They stated defendant was advised of her constitutional rights, that she refused to tell them anything except that she had been to a bootlegger's on 10th Street. One of them also looked into the car Miss Myers had been driving and saw what appeared to be a brown cloth and a hammer handle sticking out from under the seat.

Pursuant to an application by defendant, Lloyd Richards, an inmate of the State Penitentiary at Fort Madison, was brought to Des Moines for this trial but did not testify. However, it was stipulated by defendant's counsel that Richards had been indicted for the crime of robbery with aggravation of this service station and that he entered a plea of guilty to that charge and was sentenced to a term of years in the penitentiary at Fort Madison, Iowa. Both parties then rested.

Defendant filed a motion for a directed verdict on the grounds that the State failed to prove that the defendant did aid or abet Lloyd Richards in the commission of the crime of robbery with aggravation, under our recent decision in State v. Daves, 259 Iowa 584, 144 N.W.2d 879, that it failed to prove defendant assented to the act or approved of the robbery, that it failed to show by circumstantial or direct evidence that she had knowledge that Richards was going to commit the crime of robbery with aggravation, and that there was no evidence which would raise a fair inference of guilt. It was overruled. Defendant introduced no evidence and the cause was...